Nationality and Borders Bill

Written evidence submitted by the British Association of Social Workers (NBB05)

Written evidence: Nationality and Borders Bill 2021

About BASW

1. The British Association of Social Workers (BASW) represents over 22,000 social workers across the UK. BASW has a unique perspective on several issues that relate to the Bill since:

· social workers are central to the process of disputed age determination for those asylum seekers who are, or who claim to be, children.

· unaccompanied asylum-seeking children are accommodated by local authorities and placed and supported by social workers under Section 20 of the 1989 Children Act, and subsequently under the legislation relating to care leavers; and,

· social workers are also increasingly involved in the provision of monies for food and accommodation to families who have No Recourse to Public Funds (NRPF).

2. This submission sets out both our broad concerns in relation to the changes proposed for asylum seekers and, in more detail, our concerns about changes to the age determination system, and associated methodology.

3. This submission uses the terminology ‘child’ and ‘children’ in the legal sense, that is, people who are aged under 18.

Executive Summary

4. Immigration and asylum policies are enormously complex and need full and thoughtful consideration. We are concerned that the consultation on the New Plan for Immigration has been highly truncated with only a 6-week public consultation. In contrast, to other significant pieces of legislation, rather than issuing a response the government has moved directly to publishing the legislation. We have grave concerns that the consultation was rushed and has failed to deal with the complexity of the issues.

5. There is a major back log of cases of asylum cases. At the end of December 2020, there were 36,679 applications that had been pending for more than six months which is the highest figure ever recorded. [1] Delayed resolution of claims lead to major uncertainty and is deeply damaging for children as lives go on hold. The legislation will do nothing to address the backlog of asylum cases in the UK.

6. Other than a few small-scale specific schemes, there is no legal ‘official’ safe route for asylum seekers to reach the UK.

7. Instead of criminalising unsafe routes to the UK, the UK should be offering and promoting safe routes. Displacement and the fleeing from unsafe countries is not a clean and straightforward process. Not every asylum seeker will have access to sufficient funding, up-to-date information, legal advice, or may not even know where they are travelling to. They just want to be safe, to be with their families, and to rebuild their lives. Criminalising the desperation that so many people will face when their country is no longer a safe place for them, is not an approach any compassionate and world-leading country should be adopting.

8. Human trafficking exists in the vacuum created by lack of safe routes. Without clearly defined and accessible safe routes, there will continue to be smuggling and trafficking. Given the absence of safe routes the proposed establishment of a ‘two tiers’ system, whereby asylum seekers are penalised for using ‘unofficial’ routes to reach the UK, is grossly unjust.

9. We have grave concerns that the proposed return of asylum seekers to so-called ‘safe countries’ is unworkable. As yet, the government has yet to identify a country which plans to opt into this scheme.

10. The proposals on age determination fails to grasp that age determination is not simply an exercise around chronological age, but where the claimant is a child, determining the needs of that child under Section 17 of the 1989 Children Act.

11. The proposals on age determination increase the risk that children are wrongly assessed as being adults and while dangling a promise of ‘scientific methods’ of resolution, to date has given no indication of what these methods are.

12. The function and purpose of the National Age Assessment Board remain unclear and deeply worrying to many experts in the social work profession.

13. The proposals to ‘streamline’ the legal process through a variety of mechanisms will simply create more bureaucratic bottlenecks further adding to delay and uncertainty for asylum seekers.

14. These measures taken together will add to the number of families who are made destitute with No Recourse to Public Funds.

15. BASW acknowledges that there is a role for Statutory Instruments. However, the Bill currently lacks significant detail on how many key aspects simply shunting large aspects of the legislation into secondary legislation. This, taken together with the rushed consultation, suggests that there is a real vacuum in thinking as to how the proposals set out in the Bill would actually be applied in practice.

Age Assessments

Section 58 of the Bill allows the Home Secretary to ‘make provision about the processes for assessing the age of relevant persons’.

16. Children (people under 18) are entitled to specific rights, protections and services under law and international conventions. Children who are unaccompanied asylum-seekers have particular needs: they will all have suffered traumatic events, they have been separated from parents, they have had to leave their countries, homes and everything which is familiar to them, they may have witnessed or been subject to extreme violence, they may have been abused, and they have had to function (perhaps for many months or years) without appropriate adult support and protection.

17. A child’s sense of time is very different to an adult’s sense of time. A year may feel a very short time for a middle-aged adult, for a ten-year old it is 10% of their entire life and perhaps 20% of their ‘conscious’ life. Delays and prolonged uncertainty in the asylum determination process, whether a child is accompanied by their family or unaccompanied, is profoundly damaging. This underpins our concern about the overall backlog of cases.

18. For those individuals claiming asylum at an official point of entry (for example, a port or airport) an immigration officer can make a determination of age. If the situation is unclear the case is referred to a social worker who undertakes an initial assessment followed by a full age assessment. It is not uncommon that official papers (passport etc) are destroyed after entry but before being seen by immigration officials. It should not be concluded that such an act automatically reflects an adult attempting to pass themselves off as a child. For example, it may be that while the claimant is a child, because the papers are false, the child may feel that this might prejudice their case and therefore destroy them. For individuals arriving at an ‘unofficial’ point of entry (for example a beach, or lorry park) police are often the first on the scene and are not empowered to make an official determination of age. A social worker will then be contacted who will undertake an initial assessment of age and once accommodation has been resolved, a fuller assessment.

19. The most effective age determination is a multi-disciplinary age determination and may, for example, also involve the expertise of health, education professionals and any other relevant professional. It is also the case that age determination (especially initial age determination) may have to take place in less-than-ideal settings when newly arrived children remain frightened and exhausted and without access to a range of multi-disciplinary resources.

20. The experience of being an asylum-seeking child can prematurely ‘age’ a child – a child who is 15 and has travelled solo from, say, Afghanistan, may well have to adopt the demeanor of a young adult (i.e. over 18) to survive. Conversely, a young person may ‘regress’ to the appearance of a young child once they believe they are safe, or they may oscillate between these alternative ‘presentations’. The process of age determination takes time and is skilled work.

21. The process of age determination is not simply a binary process (under 18 /over 18) undertaken on behalf of the immigration authorities - important though this is. It is a legal duty to establish the needs of the child and how they might be best be met (for example, in England, Section 17, 1989 Children Act). This will include educational needs. It is of concern that while considerable profile is given to age determination neither the New Plan for Immigration nor the Bill seem to acknowledge this basic legislative reality.

22. The New Plan for Immigration makes much of the risk of adults wrongly being assessed as children and being placed with children but very little about a child being wrongly assessed and treated as an adult. While any age assessment proposals must recognise that although there is a risk when adults are wrongly assessed and treated as a child – there is a much greater risk when a child has been wrongly assessed and treated as an adult.

23. If an adult is wrongly assessed as a child, they will be accommodated in an environment where there is supervision, institutional checks and safeguarding processes. Yet if a child is sent to adult accommodation, there will be significantly less supervision and minimal institutional checks and safeguarding processes.

24. It is also proposed that the threshold whereby the age of the claimant is referred for determination is lowered from 25 to ‘significantly over’ 18. The risks of this, is sweeping up many more people who are under 18 into the age determination process. It would also significantly increase the risk of children being placed with adults given the accuracy issues with age determination.

Age Assessment disputes and resolution

25. In 2019 there were 5,070 children and young people who are unaccompanied asylum seekers (p8 DfE (2019) Children Looked After in England (including adoption) year ending 31 March 2019). In 2021 there were 598 age disputes of which 232 were determined to be children. (Asylum Summary March 2021 Tables – GOV.UK) .

26. A quick reading of the document the New Plan for Immigration gives the impression that 54% of those asylum seekers who claimed to be children were in fact adults (p. 22). This implies that 54% of all individuals who claim to be children are adults. In fact, assuming an annual intake of some 5,000 unaccompanied asylum-seeking children (the figure for 2019), in 2021 there were 598 age disputes of which of which 336 were determined to be adults (Asylum Summary March 2021 Tables – GOV.UK). On that basis, 336 of 5000, amounts to 6.72% of the population of unaccompanied asylum-seeking children.

Scientific methods

27. Both the New Plan for Immigration and the legislation dangle the promise of ‘scientific methods’ of age assessment implying an age assessment process that is both effective and irrefutable. By extension, presumably existing models of age determination used by social work professionals are ‘unscientific’. Curious to learn what these new ‘scientific methods’ were BASW wrote to the Home Office at the beginning of the consultation process. To date we have received no reply. Leaving aside complex ethical and practical issues our understanding is that existing alternative methods of age determination (dental records, x-rays, bone structure) offer a two-year margin of error which might place a 16-year-old as an adult, or conversely a nineteen-year-old as a child. There is also a problem of using the medical norms of the UK as a benchmark for assessing children who may have experienced very different physical or nutritional regimes. The ongoing silence from the Home Office as to what the ‘scientific methods’ are raises concerns that this might well be a policy and legislative ‘solution’ without any foundation.

National Age Assessment Board

28. We remain perplexed about the purpose and function of the National Age Assessment Board (NAAB). The Bill gives little insight. While it makes sense to share resources and best practice this could be simply done by a regular communication to the relevant agencies from the appropriate branch of the civil service. The New Plan for Immigration envisages that local authorities may wish the NAAB to act ‘as a first point of review for any Local Authority age assessment decision’ (p. 23) which rather implies that any age assessment that determines an asylum seeker is a child clearly needs to be reviewed.

29. We have significant concerns about the National Age Assessment Board (NAAB), primarily around its independence. This board should not be for the Home Office to implement their own agenda under the guise of independence.

30. The legislation before Parliament simply contains regulations that will allow the Secretary of State to make provision about the processes of assessing the age of children and young people. Although it will be in secondary legislation that those provisions will be put forward, there must be some assurances made sooner rather than later about the role of the NAAB. We will be looking for clear purpose and function, genuine added value, transparency, accountability, and independence from the Home Office. There must be extensive consultation with professions involved with age assessments (including health and education professionals) about what these provisions should be, and the Government should take guidance from those practitioners on the frontline who carry out assessments on how the current process can be improved.

31. The NAAB will form one part of the decision-making process about refugee status. There is concern expressed by social workers that the NAAB is designed to act as a gatekeeping body reducing the number of asylum seekers who are accepted as children rather than provide an ethically-based multiagency assessment process undertaken over a period of time. Given the lack of clarity about the purpose and function of the NAAB we have little confidence in the wider claim of the New Plan for Immigration and the Bill to streamline and accelerate the decision-making process.

32. The proposals have a stated intention to prevent delay in the decision-making process around age determination and refugee status. We are surprised that the proposals appear to have no cognizance of the work of another arm of government which reduced unnecessary drift and delay in the family courts by empowering the presiding judge with, in essence, the task of project managing the case to ensure a speedy and effective resolution. See the Public Law Outline [2] .

No Recourse to Public Funds

33. Section 10 (c) of the Bill states ‘whether a condition under Section 3 (1)(c)(ii) of the Immigration Act 1971 (no recourse to public funds) is attached to any period of limited leave to enter or remain that is given to the refugee’.

34. We are concerned that this Bill will significantly increase the number of people with No Recourse to Public Funds (NRPF) and will therefore increase the number of people, including children, exposed to destitution. Even when there are people with NRPF, there are still responsibilities on local authorities to support vulnerable adults. Where children form part of families who are claiming asylum there are additional responsibilities under the 1989 Children Act. Both have the effect of shifting the onus for care of the vulnerable to already under resourced local authorities and their budgets.

Conclusion

35. BASW believes that the proposals in the Bill as currently constructed are retrograde in terms of national, and international rights. For example, the 1951 Refugee Convention of which the UK is a signatory, lists [3] the rights of refugees which includes the right to not be punished for ‘illegal’ entry into the territory of a contracting state. By pursuing a policy of criminalising asylum seekers who enter the UK through what the Government determine to be an illegal route, we have grave concerns that this breaches the convention.

36. In matters that relate to social work functions BASW believes that many of the proposals are unworkable: at best adding layers of unnecessary bureaucracy to an already over-stretched system, at worst undermining existing rights and creating delay and further confusion for the most vulnerable children.

Contact Officer: Kerri Prince, kerri.prince@basw.co.uk

September 2021


[1] https://media.refugeecouncil.org.uk/wp-content/uploads/2021/03/22121232/Asylum-Backlogs-Mar-2021.pdf

[2] https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_12a

[3] https://www.unhcr.org/uk/about-us/background/4ec262df9/1951-convention-relating-status-refugees-its-1967-protocol.html

 

Prepared 21st September 2021